Friday, January 13, 2006

Originalism

As reported here, Judge Alito thinks that in interpreting the Constitution, "we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption." This is identified as a particular principle of interpretation, originalism. I know I am probably not saying anything new here, but "originalism" as an interpretative metric of the Constitution is radically mystical and has no place in a secular society based on any principles of logical rigor or pragmatic discourse. It is inherently onto-theological, this idea that the rules that should be prescribed for and by society are to be determined by the convocation of the imagined psychological structures of dead persons, i.e. of ghosts. It is no accident that originalist judges are the same judges who are collapsing the so-called separation between church and state. They are not using an originalist doctrine to accomplish the enshrinement of the church; rather, any doctrine of originalism is inherently theological, and based on neo-Platonic and Christian economies of an eidetic text or referent imbued with natural, psychical power and a full, enduring and non-discontinuous presence.

I would go further. The very idea of a constitutional democracy, as it has developed in this country, is opposed to the notion of democracy. There is nothing proud or noble in the frequent claim that we Americans are not ruled by a monarch or a God but by law, i.e. a text. For this text has been imbued with the same ludicrous and totalizing notions of infallibility, of historical continuity, of respect as a monarch, God or tyrant-- it acts as a center in which is constantly located by those in finite power a force of radical regression and conservation of that power. It is a figment -- when F. Douglas burned the Constitution that was the last moment of its actuality, and it was judged unworthy. Don't believe the hype. There is no Constitution. If you want a Constitution to your liking, one that can constitute a better state, you will have to take it from the teeth of every politician, every judge, every law professor, every monopolist, etc.


UPDATE: Finnegan here, just wanting to make a quick point dovetailing off of Jeremy's remarks. One of the big problems/puzzles in social contract theory---and like it or not, this is a nation that exists because of a literal contract---is how any members of a society who were not alive at the time of the adoption of the social contract could be bound to it. One possible answer---and this is a thought that would need to be fleshed out more---is that the linguistic and social context of a particular point in time at least plays a role in determining the meaning of the contract. If a theory explicitly prohibits such a causal relation, as Alito-style originalism surely does, then it clearly (if implicitly) sets up a strong, maybe insurmountable barrier to the present members of a society consenting to a contract adopted by past members; and not because the present members are intransigent, but because their language and their society just isn't the language and society of the time of the contract's adoption.

In other words, if a Constitution is not an evolving thing---not more akin to a biological species than to a Platonic form---it is not a legitimate contract at all, but rather a prescription for coercion.

3 Comments:

At 5:53 AM, Anonymous Anonymous said...

Jeremy- you are one of the few to touch on the heart of the issue. THe Constitution is being reinterpreted through the eyes of Plato by Alito and fellow conservatives, and this is due to their Roman Catholic background. It is becoming a magisterium, a mystical timeless document that takes on qualities of infallibility and can only be interpreted by "experts". The framers were hebraic in their thinking, not greco-roman, and saw the Constitution as a covenental document that establishes relationships, defines and delimits powers, and is inherently flexible and open to ongoing application as the needs of the republic changed. As American evangelicalism has become more and more ROman Catholic in the US, the "Jewishness" of the Protestant Reformation and its impact on these issues is disappearing, thus the Constitution is being pressed to define marriage, sexuality, i.e, become a document that defines morality, as does the Roman Catholic Magisterium. Has anyone read Daniel Elazar, formerly of Temple University, on these issues?

 
At 10:21 AM, Anonymous nostradamnus said...

I feel like your anti-Catholic/anti-Plato bigotry is utter bull-shit. Hebraic governments are less idealistic than Catholic? Israel anyone? Are you fucking kidding me? What is more blood and soil idealistic than that ("It's our land because it says so in this (idealizing) book")? One more time, this: "The framers were hebraic in their thinking, not greco-roman," is probably the stupidest shit I've ever seen, even in an anonymous comment. More stupidity here: ""Jewishness" of the Protestant Reformation and its impact on these issues is disappearing"... What on Earth does that mean? How does one quantify a group's "Jewishness" exactly? What you overlook in your sweeping statements is the fundamentally secular nature of a "Social Contract". If you are going to through around such broad assumptions so casually, at least have the decency to put your name so that those insulted by your simplifications can measure our response.

 
At 6:27 PM, Blogger Dantzler Smith said...

nostradamnus, you are right about the anonymous comment, but the social contract wasnt always secular. hobbes and locke are pretty much relying on a notion of natural law that is premised on a belief in god. but starting with rousseau natural law begins to refer to laws that are come upon through reason rather than revelation.

also it should be pointed out that to this day israel doesnt have a constitution. they sat down to write one and then got attacked in '47 (so i'll forgive them there) and then went on the offensive culminating in the war in '67. and if you ask me, what happened was that the constitution was never completed bc they couldnt figure out whether or not they wanted a small jewish state or a large powerful one. they started bringing in russians who proported to be jewish, although they would have said just about anything to escape the collapsing soviet union. this is a key point in israel's history bc it shows that at this point they were not overly concerned with how authentically jewish the state was, they were only concerned about how to best hold onto the land. and they needed a larger population to maintain the land they'd aquired/stolen during the 60s.

all that is to say that the constitution isnt jewish, it isnt even prodestant. the constitution was meant to be a physical embodiment of the social contract, and one that was flexible enought to be consented too, even if only tacitly, throughout the ages. you want proof? the 14th amendment. initially black people were counted as 3/5th of a person, and i think all of are glad that do to the 14th amendment that is no longer the case. so yes, it is living and breathing bc if it wasnt we would cease consenting to it and the state would collapse.

 

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